CA-2025-000342 - [2025] EWCA Civ 1442

It is helpful to begin by clearing the decks.

Contrary to Mr Harwood’s suggestion, there is nothing necessarily surprising, let alone irrational, about the fact that a site licensing decision permits only three caravans rather than the 60 caravans allowed by the 1952 and 1960 permissions (or some other number closer to that figure). Those permissions (and indeed the 1968 site licence) have to be read as a whole. The permissions are not limited to towing caravans equivalent in size to a single unit; they also include twin unit mobile homes. But it does not follow that the permissions authorise the stationing of 60 twin-unit mobile homes, if in practice that could not be achieved compatibly with all relevant conditions of those permissions. For example, the stationing of larger units requiring larger bases might in practice be inconsistent with conditions as to layout (condition 2), separation and other distances. Furthermore, assuming that a layout with 60 caravans could in practice be compatible with the 1952 and 1966 permissions read as a whole, the site is subject to an additional layer of control, the tree preservation order and, because of the unlawful felling of trees, the tree replacement notice. Even the appellant’s application asked for only 36 plots to be approved rather than 60 and now they would be content with 18.

A number of the appellant’s arguments beg the very question which it was the function of the site licensing decision to resolve, namely the number and location of caravan plots to be approved. Its submissions that an enforcement notice does not prevent reliance in the future on Class B rights for hardstandings and related development, or that it would be irrational to require the removal of the existing operational development which could then be put back immediately relying on those rights, depend upon a logically prior licensing decision as to how many plots should be authorised on the site and where. The Appellant pointed to the possibility of a local planning authority making a direction under Art.4 of the GPDO 2015 restricting or removing Class B rights within a defined area, subject to a possible liability to pay compensation to those affected. But whether there is any need for an authority to take such action again depends upon that same prior question. Submissions of this nature do not demonstrate that the UT’s decision was wrong in law.

The appellant is also incorrect in so far as it suggested that there is a separation between the retrospective nature of an enforcement notice and the prospective nature of permitted development rights. Enforcement notices are not confined to dealing with breaches of planning control which have occurred in the past. Section 181 makes it clear that, even after there has been compliance with the requirements of an enforcement notice to remedy a breach of planning control, the notice is not discharged. It continues to be effective against a repetition of that breach of planning control, whether a resumption of a use or the reinstatement of operational development (s.181(2) to (4)). Section 181(5) imposes a criminal sanction. It is because of s.181 that a landowner needs to obtain a planning permission to authorise any reiteration of development the subject of an enforcement notice. Such a notice has a prospective, continuing effect.

Where a planning permission is granted for the retention of development which has previously been carried out (for example under s.73A of TCPA 1990), an enforcement notice ceases to have effect insofar as it is inconsistent with that permission. But that does not alter any criminal liability for a breach of the enforcement notice before that planning permission was granted (s.180(3)). The notice continues to be effective going forwards, unless and until any overriding planning permission is granted.

The appellant’s submissions based upon the Mansi line of authority (see [75(2)] above) also beg the question which was to be resolved in the site licensing decision, namely how many caravans could be approved? There were no relevant permitted development rights in existence authorising the operational development at the time of the enforcement notice. That was determined conclusively by the Planning Inspector in her decision on 20 August 2021. The site licence the subject of this appeal had yet to be granted and so the Class B rights upon which the appellant seeks to rely had yet to arise. The Mansi principle adds nothing to the appellant’s other arguments.

Despite the clear reasoning of Judge Cooke in her decision on 16 March 2020, which was binding on the FTT, the appellant led the FTT to conclude that they should disregard the constraints imposed by the enforcement notice because site licensing should not duplicate planning controls (see [101]-[106]). However, this argument had petered out by the time the case reached this court and rightly so. The case law on regulatory duplication is sensitive to the terms and purposes of the legislation in question. Furthermore, some of the case law simply decided that a planning authority did not act unlawfully by leaving a particular issue to be dealt with by another regime, not that it necessarily had to do so or was obliged to disregard it. The discouragement of duplication between other regimes has no bearing on the legal relationship between the 1960 Act and the TCPA 1990, which turns upon the language used by Parliament and the relevant case law.